Magazine article HRMagazine

Why Litigate When You Can Mediate?

Magazine article HRMagazine

Why Litigate When You Can Mediate?

Article excerpt

Not all workplace battles need to land in court. In many cases, there are good reasons to use a thirdparty mediator to negotiate the terms of a truce. Advantages include saving time and money, being able to customize a resolution, and preserving confidentiality.

As a mediator, I have seen employers and employees achieve prompt resolution and specific results that would have been unattainable in court. But too often, an employer will miss the opportunity for a negotiated resolution and go to court instead, and, unfortunately, litigation has a way of hardening positions and promoting acrimony.

The time to consider mediation is when a dispute first comes to light. Whether the problem is related to termination, noncompete agreements, intellectual property or some other issue, it is best to make a rational assessment of the likely costs and opportunities early in the case, before legal fees and anger on both sides torpedo any chance for a successful mediation. HR professionals are well-positioned to advocate for the careful consideration of mediation. After all, you have seen up close how litigation can play out ... and out ... and out.

Fast Mover

Unlike litigation, which can require your attention and resources for years, mediation moves as fast as those involved are prepared to go. As one measure, the Equal Employment Opportunity Commission (EEOC) instituted mediation in the 1990s and cut the average time to resolution by 80 percent.

Once each side has prepared to mediate, the mediation itself usually takes a few hours to a day and has a 70 percent to 80 percent success rate.

Due to its speed, mediation helps you avoid losing key witnesses. Moreover, because parties can engage in mediation sooner than they can navigate the court system, employees' memories can be more accurate. Over the years, employees can change jobs or move away and become unreachable, and you may find yourself missing a critical witness by the time you get in front of a judge.

Money Saver

Litigation is expensive, distracting and painful. Not surprisingly-even accounting for preparation time-the cost of mediation is generally less than 10 percent of the cost of litigation.

Beyond legal fees, litigation has hidden costs. For example, workers spend time preparing documents and testifying in depositions instead of adding value to your business. Even when employees are not helping a lawyer to prepare the case, the distraction of the ongoing conflict can take a toll. For example, your business may suffer from a tarnished reputation or damaged relationships from the public airing of a dispute.

Moreover, in cases where a dispute involves a current employee, there is an additional kind of savings: Mediation is more likely to lead to reconciliation between employer and employee. In the long run, this reconciliation yields reduced employee turnover and improved morale.

Confidentiality

Mediation provides an unparalleled level of confidentiality regarding settlement, witness statements and any other details of the ultimate resolution reached.

At the end of a recent mediation of a sexual harassment dispute, the company's president told me that he was delighted to reach an agreement that meant he would never need to explain the case to his customers or business partners.

In fact, the standard agreement to mediate casts a broad umbrella of confidentiality to ensure that the parties feel free to let the mediator know every fact and concern that could be important in negotiating a resolution.

Finally, there is no written decision that can be cited as a precedent-or picked up by a trade publication or blogger. …

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